"On 5 May, 1851, the plaintiff issued his writ returnable to Fall Term, 1851, of the Superior Court of Northampton, against one John W. Lewis, of Duplin County, which came to the hands of E. E. Hussey, sheriff of said county, on 31 July, 1851; and the said Hussey made return of the same as follows:
"`25 September, 1851, executed, and the defendant confined in the jail of my county, for the want of bail.'
"Judgment by default, final for the debt, was taken against Lewis at the return term; and thereupon a scire facias to charge the said Hussey as bail of Lewis issued, and was made known to Hussey by the corner of Duplin County. The said Lewis had been discharged out of the jail of Duplin County by two justices of the peace, as an insolvent debtor — the plaintiff being notified of his application for a discharge.
"The said E. E. Hussey, before pleading to this scire facias, died intestate, and the defendant, as his administrator, was made a party in his stead.
"If, upon this state of facts, his Honor is of opinion that the plaintiff is entitled to recover, then there is to be judgment for the plaintiff for the sum of $351, with interest on $300 from 26 April, 1852, and the sum of $7.86 costs formerly recovered, and the costs of (238) this suit; but should his Honor be of opinion that the plaintiff is not entitled to recover, then there is to be judgment for the defendant for his costs," etc. *Page 228
And his Honor being of opinion that the plaintiff was not entitled to recover, gave judgment for the defendant accordingly, and the plaintiff appealed to the Supreme Court. The judgment pronounced in the court below, upon the case agreed was, in our opinion, correct. The defendant's intestate as the sheriff of Duplin County was expressly authorized by the 54th section of the 31st chapter of the Revised Statutes, upon arresting the body of Lewis by virtue of the plaintiff's writ, and upon the default of Lewis to give bail, to imprison him in his, the sheriff's own county. After this, the sheriff had no power to take bail from his prisoner, and could not therefore become his special bail, as was decided in the case referred to by the defendant's counsel, of Montgomery v. McAlpin,23 N.C. 463. That case, it is true, differs from the one now before us, in the particular mentioned by the plaintiff's counsel, and that there the defendant in the writ was already in prison under a capias adsatisfaciendum, at the instance of another person, which was stated in the sheriff's return. But it will be seen that the court, in the opinion delivered, did not advert to that circumstance. They say that a person who has been arrested, and given bail, may, upon being surrendered by his bail, give other bail according to the provisions of the 4th and 5th sections of the 10th chapter of the Revised Statutes; but if in default of bail on his original arrest, he was committed to jail, he cannot afterwards be permitted by the sheriff to go at large upon bail. In such case, the only mode by which he can be discharged out of custody, is to enter bail to the action in the court to which the writ is returnable, or by obtaining a rule of such court for his discharge, as provided in the 54th section of the 31st chapter, above referred to. "If the sheriff release the prisoner, or permit him to depart from prison, before (239) such bail is put in as above, or there is a rule of court to discharge him, the sheriff is guilty of an escape," and, of course, he cannot be held liable as special bail. Whether the discharge of the prisoner by the two magistrates of Duplin County, under the circumstances stated in the case agreed, will be a legal defense for the sheriff in an action for an escape, it would be improper for us to decide, as no such question is now before us. It is sufficient for us to say, that the proceeding against him as special bail cannot be sustained.
PER CURIAM. Judgment affirmed. *Page 229